INTM509130 – Intra-group funding: avoidance and arbitrage
What is arbitrage?
In the context of cross-border finance the term arbitrage is
used to describe the exploitation by multinational groups of
asymmetries between different tax regimes, to
achieve a reduction in the overall level of tax payable by the
group. This is both a concept in cross- border tax planning and a
specific piece of legislation introduced in 2005 for dealing with
arbitrage. Guidance on the latter is availably on the HM Revenue
& Customs website.
For example tax regimes differ in how they define debt and
equity. This presents opportunities to the adept tax planner who
will typically seek a tax deduction for interest payable in a given
jurisdiction and arrange for the corresponding receipt to be arise
in a jurisdiction where it will be taxed as something other than
interest (perhaps as a dividend or capital proceeds) or not taxed
at all (perhaps because it is seen as an intra-entity payment).
Examination of the relevant double taxation agreement should show
whether any mismatch is legitimate or not.
It is important to stress that arbitrage takes many forms. It
may be a simple mismatch in terms of how a particular transaction
is characterised in the parties’ respective tax
jurisdictions. Or it might involve differing perspectives on the
characteristics (e.g. residence status) or identity of the proper
person to be taxed or to whom reliefs are due. And, just as
arbitrage itself can take many forms, so the tax advantage sought
may be different from case to case. If a particular scheme is
successful a tax planner may end up
- obtaining a deduction for interest (or other expenses) where the corresponding receipt will not be taxed or will not be effectively taxed because of the availability of reliefs (DTR for example)
- obtaining a double deduction for expenses, most commonly interest, in different jurisdictions
- claiming loss relief twice in different jurisdictions.
Specific anti-arbitrage rules are rare but there are some, including the 'equity note' legislation at ICTA88/S209(2)(e)(vii) and the group relief restrictions for dual resident companies at ICTA88/S404. Arbitrage transactions that do not offend the general or specific rules of the jurisdictions involved begin to pose problems when the scale of the arbitrage type (number of transactions and amounts involved) threatens to create economic distortions. It is clearly undesirable that groups should be unduly influenced to base investment decisions, not purely on commercial considerations but also on the availability of tax arbitrage opportunities.
